Elena Kagan Confirmed

August 5, 2010

And so, we have a new Supreme Court Justice, as expected. Final count: 63-37. Five Republicans and one Democrat defected.

I didn’t post (or tweet) much during the floor debate, because, well, it was pretty dull. Look, this isn’t a partisan blog, so unlike United States Senators I can be honest about these things. This is politics. The Supreme Court is part of the political system; their decisions, while certainly driven by law and precedent, are nonetheless political actions. Elena Kagan was chosen because the president believes she’ll be a reliable vote on the Supreme Court, and because he hopes that she’ll be so for a long time -- exactly the same reason that every nominee has been chosen for at least the last couple decades. Republicans opposed her because they think she’ll be a reliable vote for a long time. However, there’s a lot of pretense about the Court not being political, and most everyone believes in retaining that pretense. All of which leads to a lot of convoluted statements on both sides. The Republicans spent an hour (at least) on guns this morning, arguing that Kagan didn’t believe in Second Amendment rights...but she claimed she did, so she couldn’t be trusted. At one point, one of the Senators (sorry, I forgot to make a note of it. Sessions?) proclaimed his incredulity at Kagan’s claims to have not studied the historical record surrounding the Second Amendment. And so he had to vote against her, not because she’s not a reliable vote on guns, but because her lack of honesty on that issue disqualified her. It was, of course, the mirror image of Democrats who said the same things when Republican nominees claimed in the past to never have given any thought to abortion. Of course, the truth is that Republicans support gun rights, Kagan probably doesn’t agree with them, and that -- and not questions of trust or lofty judicial philosophy or, certainly, the “empathy standard” that the GOP goes on about -- is why they oppose her. It’s fine, but it doesn’t make for very interesting floor debate.

Meanwhile, the real question here is what will happen in 2011-2012. As I said, five Republican Senators -- Collins, Graham, Lugar, Snowe, and the retiring Judd Gregg -- defected; Ben Nelson also defected, but said he would vote for cloture. The obvious question is: what would have happened if there were only 52 or 53 Democrats in the Senate, or for that matter 48 or 49. Elena Kagan appears, by all accounts, to be a mainstream Democratic nominee; she certainly wasn’t on the short list of liberal advocates, although she was broadly acceptable to most of them. Can any Obama nominee be confirmed to the Supreme Court next year? The problem here is that compromise is almost impossible to imagine over the Court. Does anyone believe that Thune, DeMint, and the other Senators who may be running for president next year could accept any nominee from Barack Obama? And, after Bob Bennett and the rest of the primaries this year, does anyone believe that more than a handful of Republicans will stand up to the threat of a primary?

I don’t really expect a full-blown train wreck over the budget, or over any must-pass legislation next year, no matter how well the GOP does in November. But if there’s a Supreme Court opening, and if the Democrats hold fewer than, say, 55 seats in the Senate, I think the odds of a real train wreck, a total stalemate, have to be well over 50/50. And, again, if the Democrats fall below 55 Senators, I’ll be surprised if the Senate manages to confirm very many Appeals Court nominees.